Meningitis lawsuit moving to federal court?

By Vishal PersaudStaff writer

Published: Wednesday, November 28, 2012 at 5:42 p.m.

Last Modified: Wednesday, November 28, 2012 at 5:42 p.m.

Florida attorneys for the New England Compounding Pharmacy — the Massachusetts pharmacy embroiled in the national outbreak of fungal meningitis — have asked that a lawsuit filed against them be moved from Marion County circuit court to federal court. The disease was linked to a contaminated steroid, primarily used for epidural back injections, manufactured and distributed by NECC. Three infected lots of the steroid were distributed in Marion County.

In all, there are 17 reported fungal meningitis cases in Marion alone and 24 statewide. The nationwide outbreak of the disease has garnered a reported 510 cases and 36 deaths as of Nov. 26, according to the Centers for Disease Control and Prevention.

All three deaths linked with the outbreak in Florida have been in Marion County.

According to the motion filed on behalf of the NECC, the pharmacy claims that the lawsuit is "between citizens of different states" and the amount of damages sought exceeds $75,000, thus making the case eligible for federal jurisdiction.

The motion notes there are similar lawsuits in several other states; as a result, there can be conflicts in the interpretation of federal and state laws and regulations.

The attorneys also point out that the Federal Drug Administration's definitions and rules about who has jurisdiction over compounding pharmacies and new drugs may be in conflict with federal and state laws.

"Permitted practices in some states may be considered impermissible manufacturing by FDA and other states," the lawsuit stated. "Federal standards, if applicable, will preempt state duties where it is impossible for a private party to comply with both state and federal requirements."

John Piccin, the attorney who filed the complaint on behalf of Vilinda York in Marion County, said NECC's jurisdictional move won't work.

"I don't think they're going to be successful in removing it to federal court," he said.

Piccin said he and his co-counsel should have a response to NECC's motion by the end of this week.

Experts say the move by NECC to move the lawsuit to federal court is purely logistical.

Adam Levine, an adjunct professor of law at the Stetson University College of Law, said the NECC would benefit if the lawsuit were heard in federal court because all its resources and headquarters are in Massachusetts.

Levine said it's part of the NECC's possible strategy to have the case eventually moved to a federal Massachusetts jurisdiction.

"Their ultimate goal … is to make the case heard in Massachusetts," he said.

But right now, the compounding pharmacy is just looking to move the case to federal court in Florida. If the lawsuit is moved, it's likely that a Massachusetts federal court could ultimately hear the case.

Unlike Piccin, Levine said the NECC will have no problems getting the case moved, which could pose potential problems for the plaintiff based in Marion County.

<p>Florida attorneys for the New England Compounding Pharmacy — the Massachusetts pharmacy embroiled in the national outbreak of fungal meningitis — have asked that a lawsuit filed against them be moved from Marion County circuit court to federal court. The disease was linked to a contaminated steroid, primarily used for epidural back injections, manufactured and distributed by NECC. Three infected lots of the steroid were distributed in Marion County.</p><p>In all, there are 17 reported fungal meningitis cases in Marion alone and 24 statewide. The nationwide outbreak of the disease has garnered a reported 510 cases and 36 deaths as of Nov. 26, according to the Centers for Disease Control and Prevention.</p><p>All three deaths linked with the outbreak in Florida have been in Marion County.</p><p>According to the motion filed on behalf of the NECC, the pharmacy claims that the lawsuit is "between citizens of different states" and the amount of damages sought exceeds $75,000, thus making the case eligible for federal jurisdiction.</p><p>The motion notes there are similar lawsuits in several other states; as a result, there can be conflicts in the interpretation of federal and state laws and regulations.</p><p>The attorneys also point out that the Federal Drug Administration's definitions and rules about who has jurisdiction over compounding pharmacies and new drugs may be in conflict with federal and state laws.</p><p>"Permitted practices in some states may be considered impermissible manufacturing by FDA and other states," the lawsuit stated. "Federal standards, if applicable, will preempt state duties where it is impossible for a private party to comply with both state and federal requirements."</p><p>John Piccin, the attorney who filed the complaint on behalf of Vilinda York in Marion County, said NECC's jurisdictional move won't work.</p><p>"I don't think they're going to be successful in removing it to federal court," he said.</p><p>Piccin said he and his co-counsel should have a response to NECC's motion by the end of this week.</p><p>Experts say the move by NECC to move the lawsuit to federal court is purely logistical.</p><p>Adam Levine, an adjunct professor of law at the Stetson University College of Law, said the NECC would benefit if the lawsuit were heard in federal court because all its resources and headquarters are in Massachusetts.</p><p>Levine said it's part of the NECC's possible strategy to have the case eventually moved to a federal Massachusetts jurisdiction.</p><p>"Their ultimate goal … is to make the case heard in Massachusetts," he said.</p><p>But right now, the compounding pharmacy is just looking to move the case to federal court in Florida. If the lawsuit is moved, it's likely that a Massachusetts federal court could ultimately hear the case.</p><p>Unlike Piccin, Levine said the NECC will have no problems getting the case moved, which could pose potential problems for the plaintiff based in Marion County.</p>